Applying the Precautionary Principle to Address the “Proof Problem” in Climate Change Litigation

Abstract

One of the challenges of climate change litigation is the difficulty of linking particular climate change impacts to emissions from a specific source, referred to as the proof problem. The difficulty is mainly caused by scientific uncertainties and gaps in evidence, which has been exploited by defendants seeking to deny that their emissions can be linked to specific impacts. The paper argues that application of precautionary principle, which requires decision-maker to take measures to prevent harm even where there is no conclusive scientific evidence, could be used to respond to the proof problem. It discusses how the principle can be used to hold entities and public authorities liable in climate change litigation. It provides a background of the principle, how it has been applied in litigation and how the application can be extended to climate change liability. It includes a discussion of climate related cases which have applied this principle to provide insights on how courts have applied the principle.